Contemporaneous Records: The Evidence That Decides Construction Claims

Most contractors treat project records as paperwork to catch up on when the site allows. Then a delay event lands, the claim goes in, and the file is asked a question it cannot answer. In construction claims, contemporaneous records are not supporting material. They are the case.

What Makes a Record Contemporaneous

A contemporaneous record is a document created at the time of the event it describes, by a person with direct knowledge of it, in the ordinary course of the works. A site diary completed that evening qualifies. A narrative assembled six months later from memory does not, however carefully it is written.

The category is wider than most teams assume. It covers daily site diaries, signed timesheets and daywork sheets, weekly progress reports, dated photographs, delivery notes, plant returns, meeting minutes circulated for comment, and correspondence sent while the issue was live. The common thread is timing. A statement produced after the dispute began is testimony. A record produced while the work was happening is evidence, and tribunals treat the two very differently.

Why Do Construction Claims Fail Without Records?

The pattern is remarkably consistent across rejected submissions. The delays were real, the disruption was felt, and the costs were incurred. But the file could not connect a cause the contract recognises to an effect the programme shows. The recurring failure points appear in why so many EOT claims get rejected, and thin contemporaneous evidence sits behind most of them.

The legal position explains the outcome. The party asserting a claim carries the burden of proving it, and GCC civil codes apply that principle without sentiment. An arbitrator cannot award what the record cannot verify, whatever the tribunal privately suspects about the project. A claim can be valid and unprovable. The entitlement is real, and it is worthless.

Memory makes the problem worse, not better. By the time a claim is heard, the project team has demobilised, the engineers have moved companies, and recollections have reorganised themselves around the dispute. What survives is what was written down. Nothing else reliably does.

The Contract Already Requires the Records

Record keeping in claims is a contractual duty, not a professional courtesy. Under Clause 20.1 of the FIDIC 1999 forms, the contractor must keep such contemporary records as may be necessary to substantiate any claim, and the Engineer may inspect them. Sub-Clause 20.2.3 of the 2017 suite goes further: the Engineer may monitor the record keeping and instruct additional records, and the contractor must permit inspection on request.

Tribunal guidance points the same way. The Society of Construction Law Delay and Disruption Protocol puts records at the top of its core principles, recommending that the parties agree the type, format, and frequency of project records at the outset and that delay be analysed from evidence made at the time. An arbitrator who has read the Protocol will read your file against that standard.

The consequence runs beyond compliance. An employer defending a claim reads the same clauses, and weak records hand it a second defence to sit beside the time bar. The 28-day notice rule decides whether the claim exists. The records decide what it is worth. Passing the first test and failing the second converts a strong entitlement into a negotiated discount.

A Working Test for Every Record

Three qualities decide the weight a record will carry: when it was made, who made it, and whether it agrees with the rest of the file. Timing is the first and hardest filter. A record created inside the event window carries a presumption of honesty that no reconstruction can buy back later.

Authorship is the second. Tribunals prefer the account of the person who stood in the excavation over the account of a manager summarising at month end, and a signature with a date outweighs an unattributed note. Consistency is the third and the most neglected. Diaries, progress reports, and payment applications describing the same week must tell the same story, because a contradiction inside your own file damages a claim faster than a gap does.

Building the Discipline Before You Need It

In CALIM's experience across dozens of GCC engagements, the claims that fail overwhelmingly fail in the administrative lens, not the legal one. The entitlement existed on the day the event occurred. The evidence to carry it did not, and no amount of legal drafting at submission stage could manufacture it.

The discipline that prevents this is procedural rather than sophisticated. Fix a daily diary standard and audit it weekly. Date and locate every photograph. Open a claim file on the day of awareness so records route into it as they are created, and review the claim documentation monthly against live events rather than at submission. Structured this way, the records exist before anyone knows which of them will matter.

At CALIM, we build a records matrix into every claims engagement: each clause the claim will rely on, mapped to the records that will prove it, kept current while the events are still live. It is the foundation our FIDIC claims management work stands on, because a submission is only ever as strong as the file behind it.

Frequently Asked Questions

What counts as a contemporaneous record in a construction claim?

Any document created at the time of the event, by someone with direct knowledge, in the ordinary course of the works. Site diaries, signed timesheets, daywork sheets, dated photographs, delivery notes, progress reports, and correspondence sent while the issue was live all qualify. Documents reconstructed after the dispute began do not carry the same weight.

Can I win an EOT claim without contemporaneous records?

Rarely, and never at full value. Tribunals can accept witness evidence and after-the-event analysis, but both are discounted heavily against records made at the time. In practice, weak records push contractors into negotiated settlements at a fraction of entitlement. The claim survives on paper and loses its value in the room.

Do emails and WhatsApp messages count as contemporaneous records?

Yes, if they were created while the events were live and preserved in original form with dates intact. They evidence what happened and when it was known. They do not replace formal notices, which most contracts require to be served in a stated form, to a stated address, within a stated period.

What records does FIDIC require me to keep for a claim?

Clause 20.1 of the 1999 forms requires such contemporary records as may be necessary to substantiate the claim, open to the Engineer's inspection. Sub-Clause 20.2.3 of the 2017 suite adds that the Engineer may monitor record keeping and instruct further records. The duty starts at the event, not at submission.

How long should I keep project records after completion?

Until every route to a claim has expired, not merely until close-out. That means the defects liability period plus the limitation period under the governing law, which in GCC jurisdictions can run ten years or more for construction obligations. Storage is cheap. A destroyed record is irreplaceable.

The claim is written while the project runs. The hearing only reads it back.

Note: This article provides general information on record keeping and evidence in construction claims and is not legal advice. Requirements vary with the contract form, the Particular Conditions, and the governing law. Contractors should take advice on their own contract before relying on it.